Citation Nr: 0030613
Decision Date: 11/24/00 Archive Date: 12/01/00
DOCKET NO. 99-13 497A ) DATE
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On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Wilmington, Delaware
THE ISSUES
1. Entitlement to service connection for diabetes mellitus.
2. Whether new and material evidence has been submitted to
reopen a claim of service connection for a low back disorder.
ATTORNEY FOR THE BOARD
Kimberly E. Harrison Osborne, Counsel
INTRODUCTION
The veteran had active military service from August 1952 to
August 1954. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from June 1999 decisions by the RO
which denied the claim of service connection for diabetes
mellitus and denied an application to reopen a claim of
service connection for a low back disorder.
FINDINGS OF FACT
1. The veteran's current diabetes mellitus began many years
after active duty and was not caused by any incident of
service.
2. In an unappealed November 1991 decision, the RO denied a
claim of service connection for a low back disorder. The
evidence submitted since the 1991 RO decision is cumulative
and redundant of evidence previously considered, or the
additional evidence, by itself or in connection with evidence
previously assembled, is not so significant that it must be
considered in order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. Diabetes mellitus was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 1991 &
Supp. 2000): 38 C.F.R. §§ 3.303, 3.307, 3.309 (2000).
2. The veteran has not submitted new and material evidence
since the final 1991 RO decision, and his claim for service
connection for a low back disorder is not reopened. 38
U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 2000); 38 C.F.R.§
3.156 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran had active military service in the Army from
August 1952 to August 1954. His service separation form
indicates he served in Korea during the Korean Conflict and
he received decorations indicating combat service. Most of
his service medical records are unavailable, having been
destroyed in the 1973 fire at the National Personnel Records
Center. His August 1954 service discharge examination is
available, and it is negative for a back disability or
diabetes mellitus. Physical examination at the time of
discharge revealed the veteran had a normal spine and a
normal endocrine system. Records from the Army Surgeon
General's Office (SGO) are also negative for a back disorder
or diabetes mellitus.
Private medical reports from July 1988, show the veteran
injured his back at work while lifting a 30-pound spool of
wire. He denied a past medical history of back problems. X-
rays showed slight disc space narrowing at L4-L5 and L5-S1,
and it was commented that this could reflect degenerative
disc diseae. The clinical diagnosis was lumbosacral sprain.
An undated note from Leonard P. Rosen, M.D. indicates the
veteran was diagnosed as having lumbosacral strain in July
1988 and in April 1991.
In May 1991, the veteran filed a claim of service connection
for a back disorder. When asked to state the date his
disorder began, he reported July 1988 and April 1991.
In October 1991, the veteran underwent a VA general medical
examination. The examination was negative for any
complaints, findings, or diagnosis of diabetes mellitus.
During the examination, he complained of experiencing low
back pain. X-ray studies of the lumbar spine showed minimal
moderate sclerotic changes involving the apophyseal joints
and posterior spur formation of L4 to S1. Otherwise, the
vertebral bodies and alignments were unremarkable.
Lumbosacral strain, associated with limitation of full range
of motion of the lumbar spine, was diagnosed.
The RO, in a November 1991, rating decision denied the claim
of service connection for a low back disability. The veteran
was given notice of the adverse determination that same
month. However, he did not appeal the decision.
In June 1999, the veteran filed a claim of service connection
for diabetes mellitus and requested that his claim of service
connection for a back disorder be reopened.
In June 1999, the RO denied the veteran's application to
reopen the claim of service connection for a back disorder.
The RO also denied the claim of service connection for
diabetes mellitus.
VA medical records from 1998 to 1999 show the veteran
received treatment for diabetes mellitus and for a low back
disorder. He was diagnosed as having a central herniated
disc at L4, bulge at L5, and degenerative joint disease of
the lumbar spine.
In July 1999, the veteran stated that he first hurt his back
in service while carrying another person during a training
exercise in 1952 at a base in Virginia.
II. Analysis
Service connection may be granted for disability resulting
from disease or injury that was incurred in or aggravated by
active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection will be presumed for certain chronic
diseases, including arthritis and diabetes mellitus, if they
become manifest to a compensable degree within the year after
service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§
3.307, 3.309.
A. Service connection for diabetes mellitus
Initially, it is noted that the Board is satisfied that all
relevant evidence has been properly developed and that no
further assistance is required to comply with the duty to
assist. Veterans Claims Assistance Act of 2000, Pub.L. No.
106-475, 114. Stat. 2096 (2000), including new 38 U.S.C.A. §
5103A. In this regard, the file shows the RO has obtained
relevant evidence identified by the veteran. Moreover, a VA
examination is not necessary to make a decision on the claim,
particularly since there is no evidence that the current
disability may be associated with service.
The available service medical records include the veteran's
1954 service discharge examination which is negative for
diabetes mellitus. There is no evidence of diabetes within
the year after service as required for a presumption of
service connection. The first indication of the veteran
having diabetes mellitus is in 1998, over 40 years after
service. This lengthy lapse of time after service, without
pertinent complaints, is evidence against a finding of a
relationship between a current disability and service. Mense
v. Derwinski, 1 Vet.App. 354 (1991). The veteran has given
no explanation for his apparent belief that diabetes is
related to service; he has merely filed a claim for service
connection. There is no competent medical evidence which
relates the veteran's diabetes mellitus to service. There is
nothing in the record which indicates that the veteran's
diabetes mellitus, which first appeared decades after
service, is associated with his service.
The weight of the evidence demonstrates that diabetes
mellitus began many years after service, and it was neither
incurred in nor aggravated by service. The Board concludes
that the preponderance of the evidence is against the claim
for service connection for diabetes mellitus. Thus, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet.App. 49 (1990).
B. New and material evidence to reopen a claim of
service connection for a low back disorder
The claim for service connection for a low back disorder was
denied by the RO in November 1991. The veteran did not
appeal that decision, and it is considered to be final, with
the exception that the claim may be reopened by the
submission of new and material evidence. 38 U.S.C.A. §§
5108, 7105. The question now presented is whether new and
material evidence has been presented, since the November 1991
RO decision, which would permit the reopening of the claim
for service connection. Evans v. Brown, 9 Vet.App. 273
(1996); Manio v. Derwinski, 1 Vet.App. 140 (1991). New and
material evidence means evidence not previously submitted to
agency decision makers which bears directly and substantially
upon the specific matter under consideration, which is
neither cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156; Hodge v.
West, 155 F.3rd 1356 (Fed.Cir. 1998).
Evidence available at the time of the November 1991 RO
decision included the veteran's 1954 service discharge
examination, which shows a normal spine. Other evidence then
available included medical records from 1988 to 1991 showing
the veteran injured his back at work and had lumbosacral
strain and possible degenerative disc disease. In his 1991
claim for service connection, the veteran said the condition
began in 1988 and 1991.
Evidence received since the November 1991 RO rating decision
includes VA medical reports from 1998 to 1999, and statements
by the veteran. The medical reports show the veteran
continues to have a low back disorder, and this medical
evidence does not suggest the condition is related to
service. This evidence is cumulative, not new, as there was
evidence of record at the time of the November 1991 rating
decision showing the veteran had a low back disorder many
years after service. The additional medical records also are
not material evidence as they do not relate the veteran's
current back disorder to service. By themselves, or in
connection with evidence previously assembled, the records
are not so significant that they must be considered in order
to fairly decide the merits of the claim. 38 C.F.R. § 3.156.
The recent statement by the veteran, that he first injured
his back in a stateside training exercise in service, is new.
However, his statement is not material evidence to reopen the
claim since, as a layman, he has no competence to give a
medical opinion on the diagnosis or etiology of a condition.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992). His statement
by itself, or in connection with evidence previously
assembled, is not so significant that it must be considered
in order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156.
The Board concludes that new and material evidence has not
been submitted to reopen the claim for service connection for
a low back disorder. Thus, the November 1991 RO decision
remains final.
ORDER
Service connection for diabetes mellitus is denied.
The application to reopen the claim of service connection for
a low back disorder is denied.
L. W. TOBIN
Veterans Law Judge
Board of Veterans' Appeals
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